Atherley

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 EDLY A. ATHERLEY, II, Case No.: 19-cv-2355-LAB-DEB

Plaintiff,

REPORT AND

v. RECOMMENDATION ON

DEFENDANTS’ MOTION TO

SCOTT KERNAN, et al.,

DISMISS

Defendants. [DKT. NO. 24]

17 The Court submits this Report and Recommendation to United States District Judge Larry Alan Burns pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1.c and 72.3.e. I. INTRODUCTION On December 9, 2019, Plaintiff Edly A. Atherley, II filed a Complaint pursuant to 42 U.S.C. § 1983. Dkt. No. 1. The First Amended Complaint (“FAC”) alleges Defendants used excessive force against Plaintiff in violation of his First and Eighth Amendment rights. Dkt. No. 1. Defendants move to dismiss, arguing: (1) Plaintiff failed to exhaust his administrative remedies; and (2) Plaintiff’s claims are barred pursuant to Heck v. 26 27 28 Humphrey, 512 U.S. 447 (1994). Dkt. No. 24 (“Motion”). Plaintiff opposes Defendants’ 2 …